Walking a razor’s edge in the Senate scandal

Conservative Party of Canada lawyer Arthur Hamilton appears before a committee on Parliament Hill in Ottawa, Wednesday June 9, 2010. THE CANADIAN PRESS/Adrian Wyld

The revelations in the RCMP’s latest information to obtain (ITO) filed in relation the Senate scandal and the criminal allegations against Senator Duffy and Nigel Wright offer no good news for anyone involved.

Contrary to Prime Minister Stephen Harper’s initial claims, there wasn’t just one person — or even a handful of people — connected to the dubious repayment of Sen. Duffy’s illegitimate expenses. The RCMP document implicates no less than 10 members of the prime minister’s inner circle in having knowledge of the affair.

More shocking, the new information raises serious questions about the role of two prominent Conservative lawyers: Arthur Hamilton, counsel for the Conservative Party, and Benjamin Perrin, special counsel to prime minister.

It must be remembered that the evidence presented by RCMP in the ITO has not been proven in court. The information pertaining to both Mr. Hamilton and Mr. Perrin is, however, very troubling and suggests that they may have been walking an ethical razor’s edge.

Lawyers are often exposed to complex ethical situations arising from concurrent obligations to both their clients and to the administration of justice. Those obligations can sometimes conflict.

It is alleged that Arthur Hamilton and Benjamin Perrin knew of the scheme to repay Sen. Duffy’s inappropriate expenses. The payment of money to a sitting senator is cause enough for concern — but the scheme alleged to have been hatched in the backrooms of Parliament Hill also included a quid pro quo: the sanitization of the independent Deloitte audit, scripted media lines and reimbursement of Sen. Duffy’s legal expenses.

The conditional payment of funds — from the bank account of Nigel Wright or from the coffers of the Conservative party — to a sitting senator is at the very heart of the allegations of breach of trust and fraud directed against Sen. Duffy and Mr. Wright.

The very information that forms the foundation of this alleged criminality appears, according to the RCMP, to have been known to both Perrin and Hamilton.

The RCMP alleges that not only were these lawyers aware of the repayment scheme, but that they both played a role in facilitating it.

A lawyer is under a duty not to be the dupe of his client. A lawyer must never turn a blind eye to criminal conduct. A lawyer must not ever knowingly assist in or encourage any dishonesty, fraud, crime or illegal conduct.

Mr. Perrin was involved in emails exchanged about the conditions attached to the repayment. The RCMP seized several emails between Mr. Perrin, Sen. Duffy’s lawyer and the Prime Minister’s Office, in which the deal was debated and negotiated.

If the emails obtained by the RCMP containing this information are accurate, Mr. Hamilton and Mr. Perrin may not just have been walking on an ethical razor — they may have engaged in inappropriate conduct. Such conduct could very well attract the attention of the Law Society.

A lawyer’s obligation does not begin and end with protecting his client. Lawyers are bound by rules of professional conduct.

A lawyer is under a duty not to be the dupe of his client. A lawyer must never turn a blind eye to criminal conduct. A lawyer must not ever knowingly assist in or encourage any dishonesty, fraud, crime or illegal conduct.

The RCMP information presents a compelling argument that both Mr. Hamilton and Mr. Perrin had knowledge of what was very likely a criminal offence and took steps to facilitate inappropriate acts.

Mr. Hamilton and Mr. Perrin were under an ethical obligation to advise their clients that the payment of money to a sitting senator as part of a quid pro quo was illegal. They had an obligation to report the illegal conduct up the ladder of responsibility within the organization until the matter was dealt with appropriately.

All the ladders in this case lead to Prime Minister Harper. There are two possible scenarios here — both are equally unappealing and reflect poorly on the Conservative government.

The first possibility is that Mr. Hamilton and Mr. Perrin were privy to a potential illegal scheme and took no discernible steps to put a stop to it. This hypothetical does not assist the prime minister or the Conservative party in deflecting scrutiny or establishing that they acted appropriately.

The second possibility is that, despite what the lawyers knew and what they did, they complied with their ethical responsibilities and reported details of the affair up the ladder of responsibility that ultimately leads to the prime minister.

The alleged involvement of two prominent Conservative lawyers in the Senate affair must lead to questions about the propriety of their actions. More importantly, an investigation into Mr. Hamilton and Mr. Perrin may ultimately shed light on what the prime minister knew and when he knew it (although any investigation may prove difficult given the recent information that many of the electronic communications from Mr. Perrin have been inexplicably and permanently deleted).

As Mr. Hamilton and Mr. Perrin may soon learn, it’s difficult to walk on a razor’s edge without getting one’s feet bloodied.

Michael Spratt is a well-known criminal lawyer practicing in Ottawa. He has appeared in all levels of court and specializes in complex criminal litigation. Mr. Spratt is frequently called upon to give expert testimony at the House of Commons Standing Committee on Justice and Human Rights and the Senate Standing Committee on Legal and Constitutional Affairs. He is a past board member of the Criminal Lawyers’ Association and the current treasurer of the Defence Counsel Association of Ottawa. Mr. Spratt’s continuing work can be found at www.michaelspratt.com and on twitter at @mspratt.

The views, opinions and positions expressed by all iPolitics columnists and contributors are the author’s alone. They do not inherently or expressly reflect the views, opinions and/or positions of iPolitics.

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Michael Spratt is a criminal lawyer and partner at the Ottawa law firm Abergel Goldstein & Partners. Mr. Spratt is frequently called upon to give expert testimony at the House of Commons Standing Committee on Justice and Human Rights and the Senate Standing Committee on Legal and Constitutional Affairs. He is a past board member of the Criminal Lawyers’ Association and a past vice-president of the Defence Counsel Association of Ottawa. Mr. Spratt’s continuing work can be found at www.michaelspratt.com and on twitter at @mspratt